In employment discrimination cases, plaintiffs must establish that their protected status was a "motivating factor" in any adverse employment action taken against them. Usually it is the person who makes the ultimate employment decision who allegedly has a discriminatory motive for the employment action. However, in some cases in which the ultimate decision-maker is demonstrably unbiased (for example, a personnel director who relies solely on the material in an employee's file, or a senior executive who approves an action without having personal knowledge of the plaintiff or his conduct), the courts have permitted plaintiffs, on various theories, to rely on the bias of subordinates to prove their claims. This is sometimes referred to as the "cat's paw" theory of liability.

 

Staub v. Proctor Hospital,2011 WL 691244 (U.S. Mar. 1, 2011), recently decided by the U.S. Supreme Court, is a "cat's paw" case. The employee in this case claimed that he had been discriminated against in violation of federal law because he was a member of the U.S. Army Reserve. The employee's manager and department head had time and again demonstrated their animustoward the employee and the time he required off from work in order to fulfill his Reserve obligations. His manager, for example, characterized the employee's weekend military obligations as "Army Reserve bull****" and "a b[u]nch of smoking and joking and [a] waste of taxpayers' money." The manager also told one of the employee's co-workers that the department head was "out to get" the employee. The manager finally trumped up a complaint against the employee and brought him to the Human Resources Department, where they met with the Vice-President of Human Resources.

 

Before the meeting, the manager met with the Vice President and gave her a one-sided and inaccurate report on the employee's violation of the rules.  Not surprisingly, based in part on this conversation, the Vice President decided to terminate the employee.  In fact, when the employee entered the Vice President's office, she simply handed him a termination notice and a security guard escorted him from the building. In deciding to terminate the employee, the Vice President relied on his personnel file, which she reviewed, and the input she received from the employee's biased manager. The ultimate decision was the Vice President's alone, and the employee's military obligations played no role in her decision.

The Supreme Court accepted this case for review to clarify the standard for assessing employer liability in "cat's paw" cases. The Court's opinion, written by Justice Scalia, held that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable. . . ."

 

The Court recognized a limited exception to liability where subordinate bias is at issue: "[I]f the employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action, the employer will not be liable. But the supervisor's biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified."

 

Although the Court's decision arose in the context of a bias claim based on military status, its rationale would be equally liable to other non-discrimination statutes. The obligation on senior management and human resources directors before taking any adverse employment action is now clear. Every supervisor's recommendation of discipline or discharge must be carefully scrutinized for evidence of impermissible bias or animus before an adverse employment action is taken.

 

 

The U.S. Equal Employment Opportunity Commission (EEOC) has issued new regulations to clarify compliance with the federal Genetic Information Nondiscrimination Act ("GINA"). This statute, adopted in 2008, prohibits employers from requesting genetic information about applicants or employees and from discriminating on the basis of genetic information. For purposes of GINA, "genetic information" is defined as including (a) information about an individual's genetic tests; (b) (b) information about the genetic tests of a family member; (c) family medical history; and (d) requests for, and receipt of, genetic services by an individual or a family member. Further information about the statute and regulations is available on the EEOC's website.

 

Inadvertent violations of GINA are easy to commit. According to the EEOC, an employer can violate GINA by asking "probing questions" once an employee reveals any potentially protected information, or even by conducting an Internet search (such as on Facebook or Google) on the employee if it is "likely to result in obtaining genetic information about the employee." Employers must beware of even accidental receipt of genetic information that may come to their attention in connection with pre- and post-employment medical exams, fitness-for-duty exams, or requests for FMLA or bereavement leave that disclose family medical history. 

 

The EEOC regulations provide a "safe harbor" through which employers may avoid liability in certain situations. An employer's receipt of genetic information in a request for employee medical information will be deemed inadvertent, and thus not a violation of GINA, if an employer includes in its request for information a disclaimer stating:

 

The Genetic Information Nondiscrimination Act of 2008 ("GINA") prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information" as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.